Let me start by saying that firearms and any intoxicating drug or substance don’t mix. As my longtime readers might remember, I enjoy a glass of good Scotch now and then. Well, more now than then, but that’s a different story. One thing that I don’t do when I plan to consume adult beverages is carry a gun. I’m careful about with whom and where I drink since I don’t like not being able to defend myself. On the other hand, the consequences of being convicted of “carrying a fire arm while under the influence” in my state are a permanent loss of Second Amendment Rights.
Wow, that’s a big disclaimer. On to our subject for today.
Several states, including mine, have legalized Marijuana use for either medical or recreational use. Some states are going so far as to vacate convictions going back decades if they involved “mere” possession of Marijuana.
I have no opinion on that as long as people using the drug don’t drive or do other dangerous activities that might endanger me or my loved ones. I don’t know if it’s more or less dangerous than smoking cigarettes or drinking alcohol containing beverages, and I don’t much care. That’s their business, not mine.
The problem for these people is that while Marijuana use might be legal in their states, it is still illegal under federal law. A lot of people are complaining because Attorney General Sessions has instructed the employees of the Department of Justice to enforce the laws as written. People have complained that he is just a rigid old fool who insists on enforcing an unpopular law.
People seem to have gotten use to the President and many federal officials picking and choosing what laws they will enforce, as well as against whom they will enforce those laws. The previous Administration made a practice of this and many people thought it was okay. Fortunately, in several cases the Supreme Court of the United States disagreed. In a surprisingly large number of those cases, the vote was unanimous. Which means that the laws need to be enforced as written. The alternative of course is to repeal laws that are no longer relevant. Which would require the other two branches of the federal government to actually do their jobs.
Good luck, and don’t hold your breath waiting.
Back to Marijuana. Federally, its use, possession, growing, or sale, is illegal. The federal government still prosecutes that, and some local agencies do as well.
So, how does this all relate to firearms?
Simple. People who use Marijuana in any form for any reason are violating federal law and are prohibited from possessing firearms or ammunition.
Those you you who have purchased firearms from Federal Firearms Licenses (FFL) are all too familiar with the ATF 4473 form. For those of you who don’t own guns and have no interest, the 4473 is a form that must be filled out any time someone buys a firearm of any type from a gun shop. There are no exceptions, no “loopholes”, no tricks to avoid going through the process. Whether you buy a .22 rifle or shotgun from a Walmart store or a $3,500.00 1911 pistol from a high end dealer, it’s the same process.
The 4473 is a long, hard to fill out, form that is mostly still done on paper. It’s a pain in the neck to do and simple mistakes often require redoing the whole form. One of the questions on the form is “11e”. Here is the text of the question,
“Are you an unlawful user of, or addicted to, marijuana or any other depressant, stimulant, narcotic drug or any other controlled substance?” “The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”
Note that the part in bold was added by the ATF in 2016, while Barack Obama was still President.
The issue for would be gun owners is two fold. Or maybe I should say that this is a two pronged fork. Either way, no matter how a marijuana user answers this, he potentially has a big problem.
First, if he answers “Yes”, the dealer is NOT going to proceed with the sale. The dealer isn’t even going to call the phone number used to run checks under the National Instant Criminal Background Check System (NICS). This systems is run by the FBI and as the name suggests, runs instant checks to see if there are reasons that a gun sale should not proceed. I won’t get into the problems with NICS today because they are not pertinent to the subject at hand.
If the potential buyer answers “No”, but is a habitual user of marijuana, then he has lied on a federal form. (U.S. Code 18 Section 1001). That’s prosecutable whether or not the person actually purchased a gun. The lie itself is a crime.
For my EMS readers who might not be directly interested, Dawn Nguyen illegally bought two firearms in 2010. On her 4473 she lied about a number of things, including her answer to Question 11e. She also lied on Question 11a, which asks if the person purchasing is the actual buyer or transferee. In this case, she was buying the two firearms for one William Spengler, Jr. Spengler couldn’t buy guns on his own because he was at the time a convicted felon and thus a “Prohibited Person.”
On Christmas Even 2012, the now late Spengler murdered his sister, set his house on fire, and then shot and murdered two volunteer fire fighters.
Back to the main post.
While it is unlikely that a person who lies on a 4473 about this will be caught, there is a possibility that he or she will. Besides that, it’s not inconceivable that some states might enter medical marijuana card information into their databases. Pennsylvania, which is decidedly pro gun state, was going to do something along those lines as well as rescind the concealed carry licenses of people with marijuana cards. In the end, the state decided not to do that, but it still doesn’t change federal law.
Even though Pennsylvania isn’t doing this, that doesn’t mean that the federal government and New York, Massachusetts, California, and other similarly anti firearm states won’t enforce these laws.
The easy fix for this would be for the federal government to just decide not to enforce the law. The correct fix for this is for the Legislative and Executive branches of the government to change the law.
I wouldn’t expect that to happen in the foreseeable future. As a result, people who use or possess Marijuana for any reason will remain at some legal peril.
There’s a good explanation of the various laws at the website of the Wallin and Klarich legal firm. A much more detailed description of the various laws involved. I recommend it to the reader who wants more information.